Oh my: Is Ginsburg writing the main ObamaCare dissent?

posted at 8:01 pm on June 25, 2012 by Allahpundit

Via DrewM, I’m embarrassed that it didn’t occur to me in the other post to ask whether any of the Court’s liberals have taken on a conspicuously lighter workload lately. Sotomayor’s written the fewest among the Court’s left wing, according to Sean Trende, but that might be due to the fact that she’s a junior justice and isn’t getting as many assigned to her.

There are three cases left on the court’s docket, and the cases will be released in reverse order of the authoring justice’s seniority — beginning with Justice Elena Kagan, the newest justice.

Chief Justice John Roberts is expected to author the majority ruling in the health case — because of its significance and because Justice Anthony Kennedy authored the Arizona opinion, which was the second most controversial case of the term. Plus, neither he nor Justice Ruth Bader Ginsburg have published any opinions since May 24. During that time, every other justice has published at least two majority opinions.

Here’s the list of slip opinions for the term at the Court’s website. Since May 21, every justice besides Roberts and Ginsburg has authored at least two majority opinions. It’s a lead-pipe cinch that there’ll be some enormous omnibus dissent responding to the majority in the ObamaCare case, and since Roberts is almost certainly writing for the Court, that leaves RBG as the likeliest suspect for the dissent. Which means the mandate, and maybe the entire statute, is going bye bye.

Or … does it mean something more complex? More from that Politico piece:

The court could strike all of the remaining law, none of the remaining law, just two key insurance reforms, or something in between. So there could be three or more coalitions of justices with similar views, resulting in some kind of 3-4-2 vote breakdown…

For instance: the three most conservative justices could argue that the whole law should come down with the mandate. The four liberal justices could say that the whole remainder of the law should remain in place. And two justices could say that the mandate and insurance reforms should fall. In that case, the four justices would have the most votes, but they wouldn’t have a majority.

So the coalition of three and two justices would essentially combine, and the least common denominator — striking the mandate and insurance reforms — would be the law of the land.

Yeah, given the multiplicity of issues involved in this case, it’d be amazing if there wasn’t a clusterfark of plurality opinions on Thursday morning. Which makes me think, what if they’re splitting the opinion in two, with Roberts writing for five justices on the mandate, say, and Ginsburg writing for five justices on the Medicaid expansion and severability? (Politico notes that this is possible.) Maybe that’s why she’s been quiet for so long — she’s trying to piece together a majority opinion of her own and reworking it as her colleagues object to certain passages in her draft.

Exit question: The mandate gets cashiered but the rest of the statute stays more or less intact. Good enough?

Blowback

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The 11th Circuit Court of Appeals ruled that the mandate is unconstitutional but that the entire remainder of the law — including requirements that insurance companies accept everyone and charge similar rates to the old and young — could stand.

So it looks like the law of the land covering 1/6 of the economy will be a monumental disaster just before a presidential election.

I’m curious, if their term ends Friday and she announces her retirement, is there time before the elections for Obama to replace her. I’ve read articles from the left, they want her replaced. By him. Not because the disagree with her, but that she’s too frail. I would say the answer is yes there is time and I wouldn’t be surprised if she did announce.

Was Scalia’s dissent on AZ1070 hitting the majority for inconsistency with the upcoming Obamacare ruling, or a preview of a major Rant on Thursday…

My WAG is that Scalia wanted to toss the entirety of the 2700 pages of ObamaCare out, it Roberts/Kennedy split the baby and killed the mandate, giving We The People a major, but not complete victory… Scalia will have a scathing opinion on why the entire law should have been tossed.

Love to know how much her healthcare premiums are. I suspect $0.00. I know that when she needs blood work drawn, someone comes to her and does it in her chambers. When she has to see a doctor, they send personal to escort her to the appointment and they sit and wait outside and escort her back to the court.

The mandate gets cashiered but the rest of the statute stays more or less intact. Good enough?

Better than nothing.

However, Obama is the type (reckless, stupid, and stubborn) to insist on leaving all of the rest of Obamacare in place and letting whatever will happen happen, blaming anything bad that happens on the Republicans. Which would be a disaster. But not until after Novemeber 6, 2012, which is all he cares about. He’ll worry about it if he gets elected. If not, he won’t care.

Zero is not really interested in the fate of the nation if he doesn’t get what he wants. Even some Dems are beginning to realize this. He is an overgrown adolescent who has never had a real job in his life. He and his family are financially set for life no matter what happens.

Let’s not forget how little hope we had of things even getting to this point, where we think we’ve got a darn good shot at the mandate being struck down, and a somewhat decent shot at shooting down the whole thing.

Go back to the beginning of the year when we were told that SCOTUS would hear arguments for/against Obamacare in March. I certainly don’t remember very much optimism that any of it would get struck down.

So let’s cut out all the “I weep for my country” hand wringing and feel good about how nervous the Libs are right now, considering how supremely confident they were before the oral arguments.

I’m curious, if their term ends Friday and she announces her retirement, is there time before the elections for Obama to replace her. I’ve read articles from the left, they want her replaced. By him. Not because the disagree with her, but that she’s too frail. I would say the answer is yes there is time and I wouldn’t be surprised if she did announce.

Marcus on June 25, 2012 at 8:11 PM

Ginsburg is one tough old bird. She will never retire. I’m sure she told every liberal that suggested she should retire so Obama can appoint her replacement in event of his loss that they have nothing to fear as she plans to be there till 2016 and beyond. Rehnquist died in office, so will she.

I’m thinking Justice Scalia has already tipped the SCOTUS hand when he spoke recently regarding the over broad application of the commerce clause. I’m am suspecting that not only is Obamacare going to be struck down in it’s entirety, but the SCOTUS is gong to revisit the Commerce Clause and restrict it’s application as well in this ruling.

The only good thing about the mandate being struck and nothing else is that ObamaCare would be an issue in the election and that is NOT good for little Bammie especially going into the July Congressional recesses. Townhalls would come back and more demonstrations at the Capitol. Not good for weak kneed Reps and Senators up for reelection.

If Roberts and Ginsburg are writing the opinions, how do we know which is which? We’ve assumed he’s doing the majority, but couldn’t he by the logic being used be doing the dissent instead? Not trying to poop the party, just curious.

Don’t forget the other Obamcare opinion coming: the one on the onerous Medicaid obligations on the states, that could eat up 75% of a state’s revenues. Generally, if you want fed money, you take the strings attached, but the states said this was simply beyond their resources.

The Court has to decide whether to strike this down – on its own or with or without the mandate – can they sever these two off and leave the rest?

I suppose it wouldn’t be that bad having government control my health care. I sort of like the idea of having someone like the state worker who every year manages to plow half-way up my yard, destroying lawn and landscaping, deciding what care I need or don’t need.

I suppose it wouldn’t be that bad having government control my health care. I sort of like the idea of having someone like the state worker who every year manages to plow half-way up my yard, destroying lawn and landscaping, deciding what care I need or don’t need.

Bishop on June 25, 2012 at 8:27 PM

I still think there could be a lot of cost savings associated with government health care.

For example, there’s a lot of duplication of effort currently going on. Just have the TSA officially take over responsibility for administering prostate exams, already.

If the mandate goes but everything else stays then insurance companies leave the industry and government takes over healthcare because people won’t sign up until they get sick.

Thus we get single payer.

There is SCOTUS precedent in the way of that: Duquesne Light & Power, a unanimous opinion from the Rehnquist years. The state cannot regulate a business so that it can’t make a decent profit, and goes out of business. Taking of property without due process, IIRC.

Four of the justices are gone, and of course, it could take several years for the insurance companies to get to SCOTUS.

Exit question: The mandate gets cashiered but the rest of the statute stays more or less intact. Good enough?

Nope. Look if the Mandate is struck the insurance companies will be in front of Congress looking for cover. Without the mandate the ins companies can’t abide the rest of the law. It would bankrupt them.

Allah: There is one practical issue that people are overlooking. If the mandate is struck down, how is the court going to analyze the remaining 2,700 pages to determine what stays and what goes. I just don’t think it is practical for any justice to make conclusions on the severability issue without creating a mess. This is why the lack of a severability clause is so key. With the clause, you can strike specific sections without looking at the rest of the bill. Without it, you have to go through an analysis about whether the section struck is–or is not–closely aligned with the remaining portions of the bill. With most normal legislation–which may run in the hundreds of pages–that is doable. With 2,700 pages, that is asking a lot. Seriously, it would take a signficant amount of the justices to do this analysis. And Supreme Court Justices do not delegate this type of final analysis to a clerk.

So, I think the entire bill will get a thumb up or a thumb down.

Plus, Justice Ginsberg recently noted that the pending decisions would be “sharply divided.”

My guess: Roberts writes the opinion that knocks the whole thing out; Ginsberg writes the dissent; and Scalia writes (with Thomas and Alito joining) the concurrence that tries to knock out the Wickard decision. If we are truly lucky, Roberts writes a majority decision that knocks out the Wickard case…

Tonight we are cautiously optimistic! Dad has had a better day today – he’s off of oxygen, CPAP treatments have been reduced, NG tube has been removed, IV taken out. All that remains is a catheter and PICC line. There are indications that the intestines are beginning to wake up, too. Praise the Lord! We hope he continues to improve!

Tonight we are cautiously optimistic! Dad has had a better day today – he’s off of oxygen, CPAP treatments have been reduced, NG tube has been removed, IV taken out. All that remains is a catheter and PICC line. There are indications that the intestines are beginning to wake up, too. Praise the Lord! We hope he continues to improve!

When Ginsburg was playing coy the other day and babbling about those who know don’t talk etc. She actually said at the end of her ramblings that strong dissent was going to be seen about severability…may mean the whole thing is gone or with them taking so long to rule..someone(Kennedy)is having second thoughts and they’re trying parse the whole mess.